JURIST Guest Columnists, James G. Hodge, Jr., Drew Hensley, and Walter G. Johnson of the Sandra Day O'Connor College of Law's Center for Public Health Law and Policy, Arizona State University, discuss the record and projections for shifts in health care and public health policies with the nomination of Judge Brett M. Kavanaugh to the U.S. Supreme Court....

An undergrad and law alum at Yale University, Judge Kavanaugh clerked for the departing Justice Anthony Kennedy, practiced law privately and at the U.S. Solicitor General’s office, and worked closely with independent counsel Kenneth Star (investigating President Clinton). After several years in the White House serving President George W. Bush, he was nominated in 2003 to the U.S. Court of Appeals for the D.C. Circuit by President Bush and subsequently confirmed by the Senate on May 26, 2006.

Neither his tenure on the appellate court nor his scholarly interests support a strong appreciation for core health and public health law issues. His court’s limited jurisdiction focused on federal legislative-regulatory issues have not produced a plethora of public health-related decisions. If confirmed, however, Judge Kavanaugh’s potential to directly and powerfully impact the health of millions of Americans is unquestioned. In this commentary, we provide an initial assessment of Judge Kavanaugh’s actual or prospective views on multiple constitutional, health, and public health law and policy issues based primarily on his jurisprudence and scholarship.

Constitutional Conundrums

A self-proclaimed Constitutional originalist and textualist, Judge Kavanaugh summed up his “judicial philosophy” at his July 9th nomination ceremony. “A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent.”

These views are further clarified in his own scholarship. In a 2014 address at Notre Dame, Judge Kavanaugh touted how “[t]he precise text of the Constitution controls our structure. . . [We should] not ignore the text of the Constitution simply because it . . . may be outdated, or has not adapted to modern conditions.” Later, in 2017, he noted how the specific words of the Constitution “bind us as judges, legislators, and executive officials.” He likens the role of a judge to that of an umpire ascertaining a statute’s meaning “based on the words, context, and appropriate semantic canons of construction,” and less so on its legislative history. Innovative interpretations of constitutional rights are inappropriate, he suggested, unless such rights are “rooted in the nation’s history and tradition.”

Judge Kavanaugh aligns principles of separation of powers and liberty to challenge the modern role of independent executive agencies (among other issues). In 2017, he lauded former Chief Justice Rehnquist for his role in “limiting the ability of agencies to make major policy decisions that belong to Congress” absent express legislative delegation. Recently, Judge Kavanaugh dissented in PHH Corp. v. Consumer Financial Protection Bureau (2018), which upheld the constitutionality of the appointment of the Bureau’s director (who can be removed only for cause). He argued that “independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.”

He is an unabashed critic of the Supreme Court’s seminal decision in Chevron, U.S.A., Inc. v. NRDC, Inc. (1984) allowing Congressional delegations of authority to federal agencies pursuant to articulated standards for issuance and enforcement of administrative regulations. In 2016 Judge Kavanaugh labeled Chevron deference a “textual invention by courts” representing “nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch.” It is a position he backs up in his jurisprudence. As one health law attorney recently summed in the New York Times, Judge Kavanaugh is not “inclined to rubber-stamp the actions of a government agency.” In fact, the White House praised Judge Kavanaugh for overruling federal agency authority 75 times while on the bench. In a recent case, U.S. Telecom Association v. FCC (2017), for example, he argued that FCC’s net neutrality rule is unlawful due in part to a lack of Congressional authorization.

If confirmed, Judge Kavanaugh’s constitutional views have the strong potential to steer the Court away from allowing meaningful governmental regulations in the interests of the public’s health and toward a pro-business model of limited governmental oversight. One upside of this is that Congress may have to absorb greater political accountability for failures to address core health and environmental issues.

The downside is that regulatory agencies like HHS, CMS, CDC, FDA, and EPA which Congress previously vested with achieving core health care and public health goals may be stymied in their ability to accomplish them. Coupled with Judge Kavanaugh’s unprecedented belief in the power of the Presidency, the end result constitutionally could be dire: an all-powerful President overseeing feckless agencies under-powered by Congress to address the major health challenges confronting a nation.

Health Law and Policy Challenges

Judge Kavanaugh’s positions on multiple health care-related legal battles are dominating discussions leading up to his confirmation hearings tentatively scheduled for early September. Nailing down his views on such topics is not easy. He has not extensively opined on the constitutionality of the Affordable Care Act (ACA). In his dissenting opinion in Seven-Sky v. Holder (2011), Judge Kavanaugh argued that the Tax Anti-Injunction Act prohibited the court from ruling on the constitutionality of the ACA’s individual mandate. In Sissel v. HHS (2015), he dissented that the ACA complied with the Constitution’s Origination Clause. That same year, in Priests for Life v. HHS, Judge Kavanaugh sought to rehear claims that ACA’s contraception coverage requirements violated the Religious Freedom Restoration Act (RFRA).

Judge Kavanaugh criticized the Supreme Court in a 2017 speech for upholding the individual mandate pursuant to Congress’ powers to tax in NFIB v. Sebelius(2012) despite rejecting Congress’ use of its Commerce powers. Dissenting justices in that case intimated that the individual mandate was unconstitutional and non-severable from the rest of ACA. Subsequently, President Trump signed the Tax Cuts and Jobs Act of 2017, arguably eliminating the taxing authority underlying ACA’s individual mandate (effective 2019). Correspondingly, 20 state attorneys general have challenged ACA’s constitutionality in Texas v. U.S. (2018). If this case is later heard before the Supreme Court featuring a newly-appointed Justice Kavanaugh, the Act in its entirety could be deemed unconstitutional.

Judge Kavanaugh’s record on other health care-related issues features varied results under similar methodology. He consistently applies narrow statutory readings often limiting executive agency determinations. In June 2018, he concurred in Saint Francis Medical Center v. Azar that HHS’s regulations limiting Medicare reimbursement challenges were “arbitrary and capricious.” In Hall v. Sebelius(2017), Judge Kavanaugh stated that “[t]here is no statutory avenue [for Medicare beneficiaries] to disclaim their legal entitlement” to Medicare Part A benefits. In Ivy Sports Med., LLC v. Burwell (2014), he ruled that FDA cannot rely on its inherent reconsideration authority to circumvent statutory processes when revoking a product’s prior approval.

In perhaps his most widely-criticized opinion on the D.C. Circuit, Judge Kavanaugh joined a three-judge panel in Garza v. Hargan (2017) to order the delay of abortion care for an undocumented minor in federal custody. The court sought to allow more time for HHS to expeditiously determine an immigration sponsor. When the minor petitioned for a rehearing, the court vacated its prior order. Judge Kavanaugh admonishes the court in dissent for creating a “radical . . . new right to immediate abortion on demand” for undocumented immigrant minors in federal detention.

Promoting the Public’s Health

Judge Kavanaugh’s holdings in select cases on food labeling, guns, and the environment reveal positions inapposite to protecting and promoting the public’s health and safety.

In Mills v. Giant of Maryland (2007), he rejected a class-action tort liability claim by a group seeking lactose intolerant warning labels on milk packages. “Tort law does not provide protection from the obvious or ‘widely known’ risks of consuming a particular food,” suggests Judge Kavanaugh, “otherwise, a variety of food manufacturers as well as stadiums, bars, restaurants, convenience stores, and hot dog stands throughout the country would be liable to millions . . . every day.” Though criticizing what he (and others) may consider a frivolous claim, Judge Kavanaugh discounts the critical role that tort-based class actions play in advancing public health. Yet the very entities he worries about as “liable to millions” are in fact responsible for providing safe consumables for Americans every day. His questioning of the viability of tort litigation in public health promotion is concerning against the backdrop of ongoing litigation against opioid manufacturers and other big industries.

Balancing individual rights with public health harms is the essence of solid constitutional jurisprudence. In relation to gun control laws and policies, however, Judge Kavanaugh takes an alternative view. In a 2011 dissenting opinion, he recognized D.C.’s “longstanding problem of gun violence” and “public safety motivation” when considering a local law limiting access to semi-automatic rifles. Still he would have adjudged D.C.’s law unconstitutional under his broad interpretation of 2nd Amendment precedent.

Judge Kavanaugh’s commitment to textual statutory interpretation has stagnated efforts to promote healthy environments. In 2012, he struck down EPA rules regulating emissions for upwind states in E.M.E. Homer City Generation v. EPA, arguing the Clean Air Act does not permit the rules. Judge Kavanaugh later sided with EPA when its standards were challenged as insufficient. In Communities for a Better Environment v. EPA (2013), he found EPA’s choice not to update its rules on carbon monoxide was within its statutory authority despite environmental groups’ concerns that the rules “were inadequate to protect the public health and would cause adverse health effects . . ..”

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The impacts on health care, public health, and safety of the appointment of Judge Kavanaugh to the Court cannot be fully gauged given his limited experience and lack of relevant jurisprudence. As with any Justice, his positions may continue to evolve and change as he faces increasingly pressing cases with high stakes for Americans’ health. To the extent, however, that Judge Kavanagh votes consistent with his known pro-business, anti-regulatory, and limited rights views, the future of health law and policy may predictably shift far afield from existing public health goals and objectives.

James G. Hodge, Jr., JD, LLM, is Professor of Public Health Law and Ethics, and Director, Center for Public Health Law and Policy at the Sandra Day O’Connor College of Law, Arizona State University (ASU). Drew Hensley and Walter G. Johnson are Senior Legal Researchers, Center for Public Health Law and Policy, and J.D. Candidates (2020) at the Sandra Day O’Connor College of Law, ASU.

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